You don't have to follow tech to find lessons in the young activist's suicide.

One of the most remarkable things about the suicide of Aaron Swartz is just how quickly it exploded out of the tech world and into the mainstream press and latched onto latent anger at the tactics of federal prosecutors. It was no surprise to see someone like law professor Lawrence Lessig, a friend and mentor to Swartz, write a post called "Prosecutor as Bully" soon after the news broke:

The question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.

Cybercrime is a serious problem. National security and economic interests, not to mention privacy and fraud prevention, are at stake. But those very real problems, the rhetoric associated with them, and the financial resources that follow, have been used to justify a legal regime which as often than not is used against whistleblowers, disloyal employees, and activists... If money, prestige and jobs are going to go to the offices that get the most cybercrime convictions, we aren't going to get what we are paying for. We need more data and scholorship here. We need to figure out why US Attorney's Offices, and Massachusetts, New Jersey and the Central District of California in particular, are pursuing so many troubling cases.

The CFAA's vague language, broad reach, and harsh punishments combine to create a powerful weapon for overeager prosecutors to unleash on people they don't like. Aaron was facing the possibility of decades in prison for accessing the MIT network and downloading academic papers as part of his activism work for open access to knowledge. No prosecutor should have tools to threaten to end someone's freedom for such actions, but the CFAA helped to make that fate a realistic fear for Aaron.

The government was able to bring such disproportionate charges against Aaron because of the broad scope of the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute. It looks like the government used the vague wording of those laws to claim that violating an online service’s user agreement or terms of service is a violation of the CFAA and the wire fraud statute. Using the law in this way could criminalize many everyday activities and allow for outlandishly severe penalties.

Such sentiments spread quickly into less tech-focused venues. Columbia law professor Tim Wu, for instance, the man who coined the term "network neutrality," wrote a piece for The New Yorker in which the prosecutors again came in for a shellacking:

In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest...

The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm... Today, prosecutors feel they have license to treat leakers of information like crime lords or terrorists. In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable. It threatens youthful vigor, difference in outlook, the freedom to break some rules and not be condemned or ruined for the rest of your life.

Even those who didn't write extensively about technology began taking up the cry. Soon the "prosecutorial overreach" argument made its way into Slate, where Emily Bazelon expanded it even further to critique the US federal prosecution system more generally.

Prosecutors persuaded of their own righteousness, and woodenly equating downloading a deliberately unprotected database with stealing, lose all sense of proportion and bring in the heavy artillery when what’s in order is a far more mild penalty.

I’d like to tell you that the prosecutorial overreach that took place in Swartz’s case rarely happens. But that’s not true. There are many principled prosecutors who only bring charges they believe they can prove beyond a reasonable doubt. But there are also some who bring any charge they can think of to induce a defendant who may be guilty of a minor crime to plead guilty to a major one. These cases usually are hard to call attention to: They’re not about innocence, easy and pure. They’re about the muddier concept of proportionality. If any good at all can come from Swartz’s unspeakably sorrowful death, maybe it will be how this case makes prosecutors—and the rest of us—think about the space between guilt and innocence.

Dale Cooper, who bills himself as a "porn performer and writer," wrote a piece for the Huffington Post in which he went beyond federal prosecutors to the Obama administration that oversees them.

I believe that the prosecution for the United States threatened Swartz's emotional and physical well-being, and, faced with a court battle that he could not possibly finance with his own personal wealth, he took his own life. Ortiz bullied Swartz. Her office should be held responsible in some way for his death.

By extension, the Obama administration, in refusing to intercede, should be held accountable, as well. This administration has made the policing of information and "protection" of intellectual property a priority, appointing many trademark hawks and keeping an unnerving record of prosecution of whistleblowers in an attempt to stymy government leaks. The disproportionate charges for Swartz's alleged actions are symptomatic of an administration that has chosen to make an example of specific individuals (such as Bradley Manning), to be heads on pikes on the White House lawn.

The Atlantic's Clive Crook, a well-known writer on politics and economics, also got interested in the case and drew the same broad lessons from it. He ended with a powerful plea for reform of the entire method of plea bargaining:

Assume what Swartz did was simple, selfish, unmitigated theft, as the prosecutors appear to think. Even on that ethically brainless view, the charges and threatened penalties were so disproportionate as to be quite unhinged. But here's the point: Under the present dispensation, they're actually rational. That's why Swartz's family is right to impugn the wider criminal-justice system.

By and large, American prosecutors no longer fight their cases at trial. The new dispensation is justice by plea bargain. The more savage the penalties prosecutors can threaten, the more likely the defendant (guilty or innocent) is to speed things along by pleading guilty and accepting a light penalty. According to the Wall Street Journal, Swartz was offered the choice of pleading guilty and going to jail for six to eight months, or else going to trial and taking his chances. The multiple counts and their absurdly savage sentences are best seen, just as the family said, as instruments of intimidation.

The prosecutor's bottom line, apparently, was that Swartz had to go to jail. In my conception of criminal justice, the prosecutor's role is to establish guilt, not pass sentence. Juries have already been substantially dispensed with in this country. (By substantially, I mean in 97 percent of cases.) If prosecutors are not only going to rule on guilt unilaterally but also, in effect, pass sentence as well, one wonders why we can't also dispense with judges.

Even Andrew Sullivan, one of the best-known political bloggers in the country, has picked up the case and is now hammering away at it with the voice of moral outrage. For Sullivan, what's at stake is nothing less than the broadest of issues: how the "justice" doled out to the powerful can differ from that dispensed to everyone else:

They demurred on prosecuting war criminals (hey, they're all government buddies and what's a few prisoners tortured to death among friends?), but they sure as hell hounded Aaron Swartz to his death. It really speaks to how justice is so often these days a weapon of the powerful, not a defense for the powerless.

Not every commenter has agreed that prosecutors overreached; take for instance a fascinating piece by law professor and former Department of Justice lawyer Orin Kerr in which he largely defends the basic approach to the case while still bashing the CFAA. (The anger has been palpable enough, however, that US Attorney Carmen Ortiz issued an unusual statement defending her office and its approach.)

But it's remarkable just how quickly one young geek's death has mobilized even national political columnists—who by this point must have seen just about everything—into an outrage that grew beyond Swartz and has quickly opened up a national conversation about justice and about how we seek it.

149 Reader Comments

The part I find odd is that folks think that what happened to him is anything other than business as usual.Asside from it resulting in suicide. Though I'd be interested in seeing statistics relating to that...

Prosecutors charging criminals for the crimes they commit isn't "business as usual"?

In general, prosecutors don't care if a person is guilty. They care about whether they can (in their view) get a conviction. A plea bargain is a conviction without having to prove anything, which is one reason they are popular. I'm quite sure there are many innocent people who accept a plea bargain because they don't have the ability or resources to fight the charges.

Federal prosecutors are supposed to be above politics because they are appointed, not voted into office. However, in practice, they are evaluated in part on their conviction rate.

""I know you did it, you know you did, if we save the time/expense of a trial, we're willing to give you a slightly lower sentence, because that will free up resources to investigate and prosecute other criminals".

... which may be a sound business decision but is not justice. One has to ask if the evidence is so stacked up against, why is should the trial be so lengthy and expensive? Or perhaps it is good that it is expensive; because otherwise having spare trial money at hand would act as an impetus to seek out more cases for prosecution.

Not at all. Money spent on trials is money we can't spend elsewhere. The legal system is one of those burdens of having civilization; to have civilization, you must have laws. To enforce laws, you must have a justice system of some sort.

Justice is served by plea bargains just fine. What is unjust about them? Nothing. Justice has nothing to do with trials, and people who believe otherwise don't actually understand what justice is.

Justice is about fairness and being, well, just. Plea bargaining is quite fair - you are admitting to your guilt, saying that you did wrong, and accepting - willingly - some penalty for what you've done. Admitting your guilt and willingly accepting punishment is very just - indeed, it is arguable that plea bargaining is the most just form of justice because it shows that you accept responsibility, the responsibility you abdicated by wronging society.

The courts are the last resort of justice, much like war is the last resort of diplomacy. They exist because you need them, not because you ever want to have to use them.

The stakes ought to be higher for those who contest charges in court. Some of them really are guilty and the plea bargain is actually a bargain for what they did. It's the state saying, "Hey mister criminal man. The normal sentence is 10 years is jail but if you own up, you'll only get 18 months and be eligible for parole in 12." To a criminal who did the deed, that is a bargain, not the shotgun negotiation some around here keep making it out to be. The plea bargain Aaron was offered is a softer landing in exchange for owning up to something he was alleged to have done. Aaron though it was a bad deal so he said not and thus faced a different set of outcomes: guilty and 7 years or not guilty.

No matter how it gets sliced, Aaron had a hand in every outcome:He chose to break the law. He got caught.He was offered a plea bargain or a trial. Aaron chose the trial where he might be found not guilty.He's hung himself. He's dead.

This is a situation entirely of his own making. To suggest otherwise (I know you're not but others are) is idiotic.

It reminds me of an old case, where a foreign european guy was brought to justice on the charge of sexual harassment in a plane.He always asserted that he never was guilty to begin with.And as the case proceeded, evidence tended to appear very poor.

Anyway, in order to extract a "plea bargain" from the poor chap, he was "scared to death" by the prosecutor, with the prospect of serving his entire life in prison. With the charge of "sexual assault". You can guess the other part of the implied threat : you'll be raped to death in prison.

But still, he would refuse to accept a "guilty" verdict. So the next step was to lock him into a prison, and make him wait ,wait, wait, as the case was delayed and delayed again.After spending almost a year in prison waiting for his case to be trialed, he finally accepted the plea bargain, to join back his family.Under the term, he would be considered "guilty of sexual harassment", be expelled from USA and have no right to come back. Obviously, he would relinquish any right to contest its guilt.

When he came back to his homeland, the guy made a simple remark : "what a strange country, where you have to pretend to be guilty in order to be freed from prison".

The justice system is designed for judge and jury. With prosecutors increasingly side-lining them to make unilateral decisions about the fate of the alleged criminal through threat and intimidation, it cannot be a system of justice.

How can a lawyer "sideline" the Judge and the Jury? In the end it's up to the accused and his lawyer(s) if they go for a deal or decide to take their chances in court. No one is being denied their day in court. People have a choice. No one is responsible for his death other than himself. You can't blame the lawyers or the legal system.

(Background: you are trying to defend your previous remark that most of the time a trial isn't necessary after being called out on how horrible that very idea actually is.)

When you pay a speeding tick or parking fine, that is nothing but an expidited way of:1. appearing at your arraignment and pleading guilty, meaning no trial is necessary2. the judge giving a standard judgement against you according to some established schedule or guidelines3. you paying the judgement, thus ending the matter

It is nothing like a plea bargain.

But we're comparing mountains to molehills here. A traffic ticket is nothing like being threatened with 50 years or even six months + felony record. The prosecutor is who was evil here, trying to manufacture a mountain of guilt out of a molehill of trespass and excessive downloading. Aaron was allowed to use the MIT network and JSTOR. He downloaded excessive documents. He automated the process. He hid a laptop in a closet where he shouldn't have. JSTOR isn't coming forward as a victim. At best this is trespass and violating JSTOR's terms of service. A molehill.

It reminds me of an old case, where a foreign european guy was brought to justice on the charge of sexual harassment in a plane.He always asserted that he never was guilty to begin with.And as the case proceeded, evidence tended to appear very poor.

Anyway, in order to extract a "plea bargain" from the poor chap, he was "scared to death" by the prosecutor, with the prospect of serving his entire life in prison. With the charge of "sexual assault". You can guess the other part of the implied threat : you'll be raped to death in prison.

But still, he would refuse to accept a "guilty" verdict. So the next step was to lock him into a prison, and make him wait ,wait, wait, as the case was delayed and delayed again.After spending almost a year in prison waiting for his case to be trialed, he finally accepted the plea bargain, to join back his family.Under the term, he would be considered "guilty of sexual harassment", be expelled from USA and have no right to come back. Obviously, he would relinquish any right to contest its guilt.

When he came back to his homeland, the guy made a simple remark : "what a strange country, where you have to pretend to be guilty in order to be freed from prison".

You have a reference for this case? It sounds alot like dsk but with more bs

(Background: you are trying to defend your previous remark that most of the time a trial isn't necessary after being called out on how horrible that very idea actually is.)

When you pay a speeding tick or parking fine, that is nothing but an expidited way of:1. appearing at your arraignment and pleading guilty, meaning no trial is necessary2. the judge giving a standard judgement against you according to some established schedule or guidelines3. you paying the judgement, thus ending the matter

It is nothing like a plea bargain.

But we're comparing mountains to molehills here. A traffic ticket is nothing like being threatened with 50 years or even six months + felony record. The prosecutor is who was evil here, trying to manufacture a mountain of guilt out of a molehill of trespass and excessive downloading. Aaron was allowed to use the MIT network and JSTOR. He downloaded excessive documents. He automated the process. He hid a laptop in a closet where he shouldn't have. JSTOR isn't coming forward as a victim. At best this is trespass and violating JSTOR's terms of service. A molehill.

So them his case should've been very easy to defend no matter how intimidating the prosecutor was

Oh for Pete's sake, are you serious? The prosecution offers to "put him in jail" on suicide watch, and you wonder why this "gesture of kindness" was refused? Give me a break.

He killed himself. His family didn't care enough to prevent him from doing so. His lawyer didn't care enough to prevent him from doing so. If he had been put in jail on suicide watch, there's a very good chance he would still be alive today.

I agree with quite a bit of what you've been posting, but then you say something completely fucked up like this. Let me take a guess that you've never had someone very close to you commit suicide. If so, then you can't understand how hard it is to see it coming, or how incredibly painful it is afterwards to feel that you could have, should have seen it and done something. Right now you're the personification of the anonymous internet commentator who callously adds pain to an already grieving family solely because of your own lack of compassion. Aaron Swartz was a living, breathing human being who is no longer living and breathing. It can be easy to lose sight of that in your crusade to right the wrongs of the internet, but his friends and family know this truth deeply, painfully. Please don't make the world a worse place through callous, thoughtless speculation and insults against his loved ones.

I agree with quite a bit of what you've been posting, but then you say something completely fucked up like this. Let me take a guess that you've never had someone very close to you commit suicide. If so, then you can't understand how hard it is to see it coming, or how incredibly painful it is afterwards to feel that you could have, should have seen it and done something.

The way I see it is that Scwartz's attorney, family and friends are trying to have their cake and it,too. If nobody could had foresee it, than it's not anybody's fault beside the deceased. If they want to play "I told you so," then it's fair for us to ask "if you knew about it all along, what did you do about it?"

Quite often, it the mentally ill person is an adult, it's quite often that even if the downward spiral/end result is clear to every one close, as the legal and practical standard to civil commitment are very hard to meet, and nothing can be done until something bad had happened. That's not the case for Swartz since he is on bail. Judges have much more latitude in revoking bail or impose additional bail conditions to ensure "reasonable assurance of appearance."

Uhm, I do not mean to sound cruel or anything but: where were his friends, his family? Where were all his fans who think he was doing sucha grseat thing and why didn't anyone offer to help him. I am sorry, but suicidal people leave a lot of messages thatthey are getting to that point, unless they live in utter isolation.

And if he was having such a legal problem, why is everyone acting like it was brand new?

Why did he have to kill himself in order for people to have sympathy for his plight and want to help?

Sorry, but it seems to me this kid was integrated into his technology, with technologists, with a larger community. How do yall not see this coming?

Seems to me yall failed him, he killed himself not because Ortiz was a bully - he felt alone. All suicides feel alone - that despair that overwhelms every part of oneself. How did he end up alone when yall have this great outpouring of "Oh no", why weren't you there when he was feeling like crap, or those days he cried to himself, or in the phone conversations where he sounded fine but you, the listener, felt liek somethign was wrong.

A lot of these posts are reading i feel guilty for not doing somethign sooner, but I will do something now that he is dead.

The legal system is also used to bully other countries governments into doing things they would not normally do. While I personally feel that Kim DotCom was not doing things legally, the New Zealand legal system would not have raided his grounds without the information provided by the US. And it turns out that the information provided was very vague and not up to the NZ statutes. This use of inflating the crime is systemic and the prosecuting team should be held accountable for the use of lying to get someone to incriminate themselves. I do agree that some pressure needs to be put on the suspect, and they have to know what they are being charged with, but when the prosecutor, or even the arresting officer KNOWS that the suspect is not guilty of what they are using to pressure the suspect with there should be some recompense when the suspect unjustly prosecuted.

Will you guys still be arguing a year from now? Let Steve, errr, Aaron rest. But I have to say I agree that he was a coward.

In the real world, you talk to the people who will listen and help you with your cause. You just don't run off willy-nilly trying to make change all on your own. You do that at work and you're punted. He obviously had a self-inflated ego that his parents enabled. His kind of people don't do well in the real world.

And most of you are hiding behind him and voicing your anonymous support because you're scared to stand up yourself. You don't know the difference between right and wrong. You commit a crime, you pay the price. It's irrelevant if YOU think you didn't commit a crime. We have laws, silly or not, that our society must adhere to. Do you really want anarchy? Suck it up, buttercup. You can't just decide to do whatever you want because you don't like the law preventing you from doing it. And shame on ARS for fanning the flames. Shame on his family and shame on you guys.

And how many trillions of dollars are you all willing to pay in extra taxes so that the other 90%+ of cases which end in guilty pleas go to trial?

You guys have no grasp on reality. None whatsoever.

Guilty pleas are a good thing. They save money, they allow the person who committed the crime to start down the path that leads to forgiveness, they let everyone involved acknowledge that wrong was done, and it lets people move on with their lives.

[...]

This guy was evil. You guys all have been lionizing him, but the truth is that he went to another school because if he had done it at Harvard, it would have negatively impacted himself. He was willing to inconvenience others, wasting hours of time and forcing the entire school off of JSTOR, but he wasn't willing to let himself be inconvenienced. That is evil. Evil is not killing babies; evil is selfishness without regard to others. He wasn't as evil as a nazi, but his actions cost thousands of dollars worth of time.

I don't know what world you live in, but it's not the same one that I live in.

I'm a cop and I probably see more of the justice system than most. The system stinks if you are innocent because everything is stacked against you. The district attorney has federal agencies, police and investigators. To say nothing of government funding.

You have your personal funds to hire an attorney. Or accept a grossly underfunded public defender who has many cases and will likely encourage you to accept a plea bargain to lower his case load.

Guilty pleas are often forced on people by using the threat of huge penalties. Are they a good thing? Yes, sometimes. But not in this sort of case where it's very hard to find a victim - the documents that Swartz took were never distributed, and the company who owned the documents were not pushing for the lad to be prosecuted.

You say this guy was evil. I bet you didn't know him and you know nothing about him beyond recent articles. Your determination that he was evil is, to say the least, crass stupidity. You don't know evil. I can point you at evil guys, and they are nothing like Swartz. Trust me on this.

A) Thank you for your service as a member of the police.B) As someone who isn't a member of academia, you don't understand what the loss of JSTOR access can do to you if you are operating under a deadline. It is not outside the possibility that tenure decision can be changed due to missed deadlines and unpublished papers.

@TD: Glad that I'm not the only one who sees things this way.

Unfortunately TF this approach is part of the problem. I agree what he did is not right. I also agree that if he made any money off of the distribution of possession of these documents that the charges directed toward him would have had SOME merit. But just because JSTOR could have inconvenienced you because of what he may have done is no reason to say that the bullying approach of the prosecutor was justified. The punishment should fit the crime, should it not? JSTOR should go after people or organizations who break their Terms Of Service. They should not blanket deprive everyone who legally uses their service. If they found that your University had not followed the TOS, then they would be in the right to shut off service there, but the group that you should then be upset with would be the University for breaking the TOS, not the individual who was already being prosecuted.

35 years in prison for copying, a large number of documents is a bit strong don't you think? When assault and battery with a deadly weapon in the state of Massachusetts can be much less:"In Massachusetts, someone convicted of assault and battery with a dangerous weapon can face up to 10 years in prison and $5,000 in fines. The penalties are more severe (up to 15 years in prison and $10,000) when:The assault and battery caused serious bodily injury, such as permanent disfigurement, impairment of bodily function, loss of limb or substantial risk of death; orThe assault and battery was against a pregnant person; orThe assault and battery was against a minor; orThe assault and battery also violated a restraining order.(Mass. Gen. Laws ch. 265, § 15A)"

35 years in prison for copying, a large number of documents is a bit strong don't you think? When assault and battery with a deadly weapon in the state of Massachusetts can be much less:"In Massachusetts, someone convicted of assault and battery with a dangerous weapon can face up to 10 years in prison and $5,000 in fines. The penalties are more severe (up to 15 years in prison and $10,000) when:The assault and battery caused serious bodily injury, such as permanent disfigurement, impairment of bodily function, loss of limb or substantial risk of death; orThe assault and battery was against a pregnant person; orThe assault and battery was against a minor; orThe assault and battery also violated a restraining order.(Mass. Gen. Laws ch. 265, § 15A)"

So I guess the fear of losing access to JSTOR is worth more to you than if someone tried to kill you, and only took an arm, by more than double the time.

Actually no. the only reason this became a FEDERAL case and not a state ot local case is the fact that he HACKED into MIT's system. Gaining unauthorized access to ANY computer or network is a FEDERAL crime which CAN, not WILL, have you sitting in federal prison for a VERY long time. circumventing ANY security on a computer or network is a federal crime. Had this dumbass not circumvented the security on that system to gain access the feds wouldn't have been interested the case because they don't give a shit about copyright infringement. And if you bothered to do some research into this you'd learn that the kid wasn't actually facing 30+ years if convicted. There is very good reason why the penalty for hacking is so high. The media simply parroted what the maximum time someone facing the charges he was COULD get or the shock value. The actual time you are given depends entirely on your intent. If they found he had for more than simple copyright infringement in mind when he hacked that system he would have been facing serious time. This kid was obviously NOT some super cyber terrorist or cyber spy. The most he could have been hit with is 7 years and the federal lawyers said they were going to TRY for that which means more likely than not the judge would have given him less time.

Why all the melodrama surrounding this case? This was a kid who was caught in the act of hacking into MIT's system. He couldn't deal with the possibility of spending ANY time in federal prison so he chose the coward's way out. He did this to himself. No one forced him to knowingly commit a federal crime. No one made him take his own life.

So I guess the fear of losing access to JSTOR is worth more to you than if someone tried to kill you, and only took an arm, by more than double the time.

35 years was never on the table. The prosecutors thought that the max they could get under the sentencing guidelines was 7 years, and that's pushing it.

And when people do multiple crimes over a period of time, the maximum sentence for the crimes combine will, at some point, exceed the penalty for one more serious crime. 10 counts of shoplifting in my state has a theoretical maximum of 30 years. But that wouldn't be on the table, either.

So I guess the fear of losing access to JSTOR is worth more to you than if someone tried to kill you, and only took an arm, by more than double the time.

35 years was never on the table. The prosecutors thought that the max they could get under the sentencing guidelines was 7 years, and that's pushing it.

And when people do multiple crimes over a period of time, the maximum sentence for the crimes combine will, at some point, exceed the penalty for one more serious crime. 10 counts of shoplifting in my state has a theoretical maximum of 30 years. But that wouldn't be on the table, either.

Exactly. It's pathetic how many people have fallen for lies like this.

The judge is free to apply any sentence they feel is appropriate. If the guilty plea is the result of a bargain, they'll honor the bargain. If there is a trial that results in a guilty verdict, and what they feel is appropriate is something short of the maximum, they'll sentence accordingly. "Usually" the maximum sentence is reserved for only the most egregious offenses. Usually! There are no guarantees; the maximum sentence was never off the table, unless the plea bargain was accepted.

So I really cannot follow the logic that twists this into "therefore Swartz was never facing decades in prison."

If he maintained his innocence and then lost a jury trial, which your expert predicts would happen, there were no guarantees about what the sentence would've been. Probably it would've been less than the maximum, if Kerr is right. Maybe it would've been less. Maybe not. It still could be the maximum. The prosecution was not making any promises that it would seek less than the maximum, or even make a sentencing recommendation at all.

And it's not Kerr's neck on the line, so he can prognosticate all he wants, and you could've both called yourselves geniuses when the actual sentence was 29 years.

I note this expert also says "...the facts were not much in dispute; the charges were based on a fair reading of the law; and [...] a motion to suppress was filed, but it was plainly meritless on multiple independent grounds."

Mm-hmm.

He goes on to suggest that we should all simply wait for the Supreme Court to resolve the circuit split on the CFAA. The Supreme Court has not taken up the matter, and the DOJ isn't ready to ask it to (and why should they?) Yet he predicts that it eventually will got to the top, and the dissenting Nosal decision will prevail against the three other cases which uphold the DOJ's interpretation of the CFAA.

Again, it's not his neck on the line, is it? None of that would happen before Swartz's case was adjudicated, and if he was right about how solid the DOJ's case was, then that means Swartz would be in prison. And meanwhile the DOJ is going to keep throwing the CFAA at every hapless "hacker" they can.

If Kerr is wrong on any of his predictions, what's he going to do, rally for justice and bust Swartz out of prison? No, probably just say "oops" and shrug, same as all the forum commenters who say "Swartz was only facing 6 months."

Wow, so self indulgent in your ignorance. The prosecutors were not seeking maximum.

Quote:

According to Swartz’s defense attorneys, prosecutors claimed that they thought the judge might impose a Guidelines sentence as much as 7 years if Swartz went to trial and was convicted.

So he was looking at a maximum of seven years if he fought all charges or 0-6 months under a plea bargain.

If say the police suspected say nefarious activity on their (MIT's) network (say illegal money transfer i.e. Laundering) would the police have needed a warrant to enter the network closet?

If the positions were reversed, the police would cry expectation of privacy, is not present: No security, no locked door, a homeless man using the space for 'quarters.' (This is the gist I get from what I've read, if I'm mistaken, I expect a coherent response, withstanding Titanium Dragon. Btw you sound like a paid troll, in the 90's all of this would have been a non federal issue.)

If there was a 'trespass' why were none of these issues addressed? (by the university, or the police BEFORE the incident discussed here.)

If all these issues are taken into account, this is simply between him, JSTOR, and the university. The feds have no business here. Period.

The US attorneys office comes away here looking like another gang, who's bullets/charges you have to dodge walking home from school. Respect their authorita! or else.

35 years in prison for copying, a large number of documents is a bit strong don't you think? When assault and battery with a deadly weapon in the state of Massachusetts can be much less:"In Massachusetts, someone convicted of assault and battery with a dangerous weapon can face up to 10 years in prison and $5,000 in fines. The penalties are more severe (up to 15 years in prison and $10,000) when:The assault and battery caused serious bodily injury, such as permanent disfigurement, impairment of bodily function, loss of limb or substantial risk of death; orThe assault and battery was against a pregnant person; orThe assault and battery was against a minor; orThe assault and battery also violated a restraining order.(Mass. Gen. Laws ch. 265, § 15A)"

So I guess the fear of losing access to JSTOR is worth more to you than if someone tried to kill you, and only took an arm, by more than double the time.

Actually no. the only reason this became a FEDERAL case and not a state ot local case is the fact that he HACKED into MIT's system. Gaining unauthorized access to ANY computer or network is a FEDERAL crime which CAN, not WILL, have you sitting in federal prison for a VERY long time. circumventing ANY security on a computer or network is a federal crime. Had this dumbass not circumvented the security on that system to gain access the feds wouldn't have been interested the case because they don't give a shit about copyright infringement. And if you bothered to do some research into this you'd learn that the kid wasn't actually facing 30+ years if convicted. There is very good reason why the penalty for hacking is so high. The media simply parroted what the maximum time someone facing the charges he was COULD get or the shock value. The actual time you are given depends entirely on your intent. If they found he had for more than simple copyright infringement in mind when he hacked that system he would have been facing serious time. This kid was obviously NOT some super cyber terrorist or cyber spy. The most he could have been hit with is 7 years and the federal lawyers said they were going to TRY for that which means more likely than not the judge would have given him less time.

Why all the melodrama surrounding this case? This was a kid who was caught in the act of hacking into MIT's system. He couldn't deal with the possibility of spending ANY time in federal prison so he chose the coward's way out. He did this to himself. No one forced him to knowingly commit a federal crime. No one made him take his own life.

I apologize for misunderstanding that this was a federal case and not a state case. I was merely trying to show that the length of incarceration for the type of crime he did seemed to be out of sync with other, IMHO, lesser crimes from the same area, I could go see what the federal laws (if any exist) on assault with a deadly weapon are and compare so that we get an "apples to apples" comparison.

I'm not saying that anyone else is at fault for his suicide, only that the years of jail time he was looking at was far and above the type of crime he committed. If I were looking at 30 years plausible jail time (more if the maximum were given by the judge), when I could have gone out with a machete and gravely injured someone and gotten less maximum jail time I would think that the system is a bit flawed.

When those infractions are being leveled at me by the prosecution office, I would think that the fear induced would be worse in that the federal government is behind them more than the state, and knowing that I would not be able to afford to mount a viable defense against them again would raise my anxiety.

So I guess the fear of losing access to JSTOR is worth more to you than if someone tried to kill you, and only took an arm, by more than double the time.

35 years was never on the table. The prosecutors thought that the max they could get under the sentencing guidelines was 7 years, and that's pushing it.

And when people do multiple crimes over a period of time, the maximum sentence for the crimes combine will, at some point, exceed the penalty for one more serious crime. 10 counts of shoplifting in my state has a theoretical maximum of 30 years. But that wouldn't be on the table, either.

Exactly. It's pathetic how many people have fallen for lies like this.

Actually I was posting the years as they added up and the webpage I referenced also added them up the same way. Not saying they would be served consecutively, but the added charges listed in the bullets are shown in extra time, not shown in the total amount of time that the perpetrator would have served.

It might be a good thing if the people at JSTOR were unemployed. We (the people) might be able to see the research we paid for at a reasonable price. And I'd take a bet that Google (or some other company) would take on the work that JSTOR does without the huge markup. Maybe even for free.

If Google take over doing it, how long will they maintain it before they have another "Spring Cleaning," discontinuing the service and delete the data.

I sometimes wonder whether somehow encouraging transparent mirrors, via bit torrent or rsync could be a way to help share the load and reduce the risk of sharing the journal content? I also wonder whether there could be an institution sponsorship/donation program that helps such organizations in the costs of scanning, indexing and making available?

I am disappointed with what happened and it is possible lines were overstepped by all parties, but if this ends up being a catalyst for change, then ironically this tragedy will have been a good thing. Sometimes crap has to happen before eyes are opened.

Maybe we need to start the Aaron Swartz Open Journal Archive, with the intent of finally addressing the issues about public open access to journals, but also addressing appropriate compensation to ensure that such an organization has the funds to do the much needed work? At least this way his death won't have been for nothing.

If say the police suspected say nefarious activity on their (MIT's) network (say illegal money transfer i.e. Laundering) would the police have needed a warrant to enter the network closet?

If the positions were reversed, the police would cry expectation of privacy, is not present: No security, no locked door, a homeless man using the space for 'quarters.' (This is the gist I get from what I've read, if I'm mistaken, I expect a coherent response, withstanding Titanium Dragon. Btw you sound like a paid troll, in the 90's all of this would have been a non federal issue.)

If there was a 'trespass' why were none of these issues addressed? (by the university, or the police BEFORE the incident discussed here.)

If all these issues are taken into account, this is simply between him, JSTOR, and the university. The feds have no business here. Period.

The US attorneys office comes away here looking like another gang, who's bullets/charges you have to dodge walking home from school. Respect their authorita! or else.

Do you think thats worth 50 years or more in jail? Thats what he was potentially looking at.

No, he was not. That red herring has been put to rest time and time again.

He was facing 6 months and a felony on his record. That was the plea bargain he turned down.

Speaking of blinders...

Why do you assume that he'd see the plea bargain as a viable option? Do you just assume that he's morally bankrupt and was not planning to take this to trial, regardless of what deals were offered? It seems taking this to trial was part of the plan. I suspect the prosecutor thought that as well, hence the game of chicken.

I didn't assume that. I was just saying that 50 years was never a possible outcome. So people should stf up about the 50 years.

It's not the court of public opinion. It's the court of some well-known and very vociferous individuals who are taking another opportunity to push their standard agenda, spiced with the usual exaggeration and misinformation.

Lulz at everyone hotly debating the technicalities of his case when we all very much know that the laws regarding digital/internet/computer systems are antiquated and inefficient.

Honestly his death hurts the chances of early reform as this case gets thrown out. He needed to stick with his guns and force a speedy and public trial. Even if he loses it, it sets ground for appeal and possible path to Supreme Court review, which is about the only way these laws are going to change.

For his status and occupation, felony status would of been basically meaningless. He couldn't vote or own a gun. He already participated in two startups. His case was already in the news and his name known. Any ill-effects on his job occupation would already have surfaced and felony status would have no extra impact. Sure there's pride, but if you're already set out to throw a wrench in the system, you should be prepared and know fully what you're getting into and how to fight it especially since the government will start out one step ahead.

....Justice is about fairness and being, well, just. Plea bargaining is quite fair - you are admitting to your guilt, saying that you did wrong, and accepting - willingly - some penalty for what you've done. Admitting your guilt and willingly accepting punishment is very just - indeed, it is arguable that plea bargaining is the most just form of justice because it shows that you accept responsibility, the responsibility you abdicated by wronging society....

Sorry I beg to differ. Plea bargain, as the name implies is bargaining. Bargaining implies give and take. Give and take implies compromises, and compromise is not justice. Someones feeling sorry over some crime is a good thing, but it does not diminish the damage that his crime has done. To undo that damage you need proper justice - not less, not more. Someone may genuinely and honestly feel sorry over killing someone and may wow to never do it again; but that does not change the fact that he killed someone and caused an unrepairable damage to the other party. In order to serve justice, he needs to be given the 'rightful' punishment - his sorrow and remorse are good but irrelevant.

The only way I see for leniency is as a right of the aggrieved party to let go or settle for less in exchange for some incentive. That is, a plea deal or leniency may be suggested but even the judge should not be the one who can approve it; only the aggrieved party has the right to agree to it.

Of course for this all to work and make sense is to make sure that your punishments are not cooky cutter recipes applying jail-time as the only possible solution. Like someone else mentioned in a related thread, they need to be more tailored to the crime and such that they are effective without destroying the other person's life by condemning him to a jail-cell for a good part of their lives.

Justice does not demand that you treat the felon mercilessly. You can be both - just and merciful. If anything, the punishment should be swift, to the point, and quick, perhaps more painful, and then be done with; with the person back into the society with no stigmas attached. You did something wrong, you got punished for it, and now you are good again. That will rectify the prison industrial complex.

Frontline covered the topic of Plea Agreements and their impact several years ago. I found it distressing, but very informative. I highly recommend watching it. If anything, it is more true today than when it aired.

If say the police suspected say nefarious activity on their (MIT's) network (say illegal money transfer i.e. Laundering) would the police have needed a warrant to enter the network closet?

If the positions were reversed, the police would cry expectation of privacy, is not present: No security, no locked door, a homeless man using the space for 'quarters.' (This is the gist I get from what I've read, if I'm mistaken, I expect a coherent response, withstanding Titanium Dragon. Btw you sound like a paid troll, in the 90's all of this would have been a non federal issue.)

If there was a 'trespass' why were none of these issues addressed? (by the university, or the police BEFORE the incident discussed here.)

If all these issues are taken into account, this is simply between him, JSTOR, and the university. The feds have no business here. Period.

The US attorneys office comes away here looking like another gang, who's bullets/charges you have to dodge walking home from school. Respect their authorita! or else.

"(a) Wire Fraud. The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses. This strikes me as a pretty strong charge here. The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address. Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so. And the “property” was the contents of the JSTOR database itself."

Additionally, How is changing settings on your own PC Hacking? Its the responsibility of the university to secure its network. If he can just plug in, and get an IP, and have net access there isn't any security. As far as I'm concerned this is Gross network mismanagement. MIT's network settings allowed this to happen.

The link mentions 'broke into a network closet' what security was circumvented to access the closet. If he just opened a door, with out breaking/forcing a lock, its on MIT.

I agree with the author of The Volokh that 'unauthorized access' might be a fair charge, the only one mentioned.

MIT has some weight to pull here. While this guy was pretty smart, I've seen no evidence that 'security' was in place. If anything JSTOR should still have beef with MIT, this was 'allowed' on their network. Card processors are held to this standard if money laundering occurs on their network, (and it does every day). Most banks and large processors have had multiple million dollar fines due to activity 'on their network' that didn't originate with them. Since it wasn't flagged and denied, they're responsible.

All I see here is a civil case where MIT can seek damages from Swartz, and JSTOR from MIT. Hopefully MIT will secure their network equipment, and add some port security.

The only criminal possibility is unauth'ed access, not to JSTOR, he did have access! To MIT's network, I've explained why this is also pretty weak.10k fine 1 year with out a computer. No damage can be proven, execpt for removal of access, which imo is MIT's bag.

My problem with the case's potential impact:

Changing settings on your own computer, isn't illegal, this case could have set a precedent, where your IP is considered ID, and that is just crazy talk. (wire fraud charge) Whatever precedent already exists, (for IP as ID) is simply chilling to expound upon.

(a) Wire Fraud. The Wire Fraud statute, 18 U.S.C. 1343, prohibits a scheme to gain “property” by false pretenses. This strikes me as a pretty strong charge here. The false pretenses are provided by the false identification and spoofing of Swartz’ IP address and MAC address. Swartz was trying to trick JSTOR into giving him access to their database after they had specifically tried their best to ban him from doing so. And the “property” was the contents of the JSTOR database itself.

You missed the next paragraph, where he argues that the database is in fact property.

Quote:

Additionally, How is changing settings on your own PC Hacking? Its the responsibility of the university to secure its network. If he can just plug in, and get an IP, and have net access there isn't any security. As far as I'm concerned this is Gross network mismanagement. MIT's network settings allowed this to happen.

Is it also the responsibility of rape victims to wear modest clothing? Let's not the blame the victim, who deliberately had a generous guest network despite opportunities for abuse.

Quote:

The link mentions 'broke into a network closet' what security was circumvented to access the closet. If he just opened a door, with out breaking/forcing a lock, its on MIT.

Guess what? Locked or unlocked, entering a room you don't have permission to be in is a crime.Swartz knew this, judging by how he covered his face with a bicycle helmet while entering the closet.

Quote:

I agree with the author of The Volokh that 'unauthorized access' might be a fair charge, the only one mentioned.

MIT has some weight to pull here. While this guy was pretty smart, I've seen no evidence that 'security' was in place. If anything JSTOR should still have beef with MIT, this was 'allowed' on their network. Card processors are held to this standard if money laundering occurs on their network, (and it does every day). Most banks and large processors have had multiple million dollar fines due to activity 'on their network' that didn't originate with them. Since it wasn't flagged and denied, they're responsible.

More victim blaming.

Quote:

All I see here is a civil case where MIT can seek damages from Swartz, and JSTOR from MIT. Hopefully MIT will secure their network equipment, and add some port security.

The only criminal possibility is unauth'ed access, not to JSTOR, he did have access! To MIT's network, I've explained why this is also pretty weak.10k fine 1 year with out a computer. No damage can be proven, execpt for removal of access, which imo is MIT's bag.

The correct punishment in this case is, as stated, whatever would be sufficient to deter him from committing future crimes. Neither of us knows what that would be.

Quote:

My problem with the case's potential impact:

Changing settings on your own computer, isn't illegal, this case could have set a precedent, where your IP is considered ID, and that is just crazy talk. (wire fraud charge) Whatever precedent already exists, (for IP as ID) is simply chilling to expound upon.

Changing settings to break into a network is illegal for the same reason filing down a key and using it to break into a house is illegal. Just because it's easy to do doesn't make it legal in all circumstances.

Our "justice" system is no longer concerned with justice - it is concerned with intimidation to avoid trying to determine if someone is really guilty or not. No one is complaining about the harsh "plea bargain" situations that poor people, charged with minor crimes, are forced into. They are given the choice of pleading guilty because they know that public defenders don't care about them and they know the system is heavily stacked against them and they are threatened with huge penalties if they don't give up, even when they are clearly not guilty. Also the plea bargain is cheaper for the government; we substitute saving money for justice.

I was pressing the same arguments of procedural overreach and prosecution entrapment when Tommy Chong got entrapped and subsequently went to jail in an obviously misguided personal vandetta against him over glassware. This kind of thing is harder reform than firearm or patent laws.

And if you've seen the documentary about Tommy's incarceration (a/k/a Tommy Chong), you'll remember that he accepted a plea bargain only because the prosecutor threatened to send his wife and sons to jail if he didn't agree to their terms. Now, there are dozens of otherwise law-abiding medical marijuana activists facing prison for providing medicine to cannabis patients, having been hounded by U.S. Attorney Melinda Haag, who despite her other responsibilities, seems to feel her only job is to shut down all medical marijuana operations in California, a state where this has been a legal activity since 1996 when Proposition 215 was passed by the voters.

For all these people saying lost access to JSTOR for 2 days is the worst possible thing in the world, I hope their internet access never goes down or power outage like the one from Sandy ever happens to them or the ships that accidentally sever internet pipes for entire countries.

One can only wonder the punishment to those people if 2 days of lost access to 1 compilation database of articles would require such destruction of life. What if someone hit the telephone pole and knock out my internet dsl connection? I should lock them up for life!

My mediacom internet has been barely usable due to 5 minute lag spikes every 10-15 minutes from the hours of 5pm to about 1am, conviently the time I'm home and awake, for the last month and a half (despite 3 tech visits they have yet to fix the issue). How long do I get to put them in jail for?

Lulz at everyone hotly debating the technicalities of his case when we all very much know that the laws regarding digital/internet/computer systems are antiquated and inefficient.

Honestly his death hurts the chances of early reform as this case gets thrown out. He needed to stick with his guns and force a speedy and public trial. Even if he loses it, it sets ground for appeal and possible path to Supreme Court review, which is about the only way these laws are going to change.

Why are you hearing that Swartz faced 35 or 50 years if it was not true? First, government press releases like to trumpet the maximum theoretical numbers. Authors of the press releases will just count up the crimes and the add up the theoretical maximum punishments while largely or completely ignoring the reality of the likely much lower sentence. The practice is generally justified by its possible general deterrent value: perhaps word of the high punishment faced in theory will get to others who might commit the crime and will scare them away. And unfortunately, uninformed reporters who are new to the crime beat sometimes pick up that number and report it as truth. A lot of people repeat it, as they figure it must be right if it was in the news. And some people who know better but want you to have a particular view of the case repeat it, too. But don’t be fooled. Actual sentences are usually way way off of the cumulative maximum punishments.

Tell that to Aaron Sandusky, the medical marijuana provider in California who was last week sentenced to 10 years in prison. For growing weed to give to sick people. Or the five senior citizens serving life sentences in federal prison for selling weed back in the "Just Say No" years of the 1980s and 1990s.

If say the police suspected say nefarious activity on their (MIT's) network (say illegal money transfer i.e. Laundering) would the police have needed a warrant to enter the network closet?

If the positions were reversed, the police would cry expectation of privacy, is not present: No security, no locked door, a homeless man using the space for 'quarters.' (This is the gist I get from what I've read, if I'm mistaken, I expect a coherent response, withstanding Titanium Dragon. Btw you sound like a paid troll, in the 90's all of this would have been a non federal issue.)

...

My problem with the case's potential impact:

Changing settings on your own computer, isn't illegal, this case could have set a precedent, where your IP is considered ID, and that is just crazy talk. (wire fraud charge) Whatever precedent already exists, (for IP as ID) is simply chilling to expound upon.

You have no idea what you are talking about. The police absolutely would need a warrant to tap MIT's network. Warrants have nothing to do with whether the premises are locked or unlocked. "Expectation of privacy" is not defined as "expectation that no one would have access without a key".

No one has claimed changing your IP is illegal. What is claimed is that when someone has explicitly locked you out of their network, and you know it, that taking steps (however easy those steps may be, and however legal they may otherwise be) to get around their lockout is illegal.

An example I gave earlier: There is nothing illegal about picking locks. It is however, illegal to pick a locked door that doesn't belong to you in order to gain access to somewhere you'd been locked out of. And it doesn't matter if that door has a really easy to pick lock.

Aaron Swartz didn't accidentally change his IP and MAC address.

Aaron Swartz didn't change his IP and MAC address for some straightforward reason that had the side-effect of getting around MIT and JSTOR's lockouts.

Aaron Swartz purposefully changed his IP and MAC address so that he could connect to a network he'd been blocked from, in order to connect to a website he'd been blocked from. Are you saying that it shouldn't be illegal to break into websites? Or are you just saying it should only be illegal to break into websites that have hard to break security.

EDIT: Mostly just reduced the length of the quote. Also changed the first paragraph to add discussion of "expectation of privacy".